An albatross that won’t go away

Right on the heels of the detailed judgment of the 10-member bench of the Supreme Court (SC), the dissenting remarks by four judges have also been announced. The judgment, scripted by CJP Justice Umar Ata Bandial, constitutes a scathing indictment of the authors of the ‘majority’ judgment as well as the petitioners who resorted to tactics unbecoming of a judge of the apex court and members of his family.

After a detailed narrative pertaining to the proceedings spread over a hundred pages, the objections raised by the petitioners and the judges’ understanding of the law, the dissenting order has these damning words to say: “By accepting the review petitions and seeking to prevent a consideration of the freshly discovered relevant and genuine information, the review majority has created an anomalous situation whereby a process of this court in aid of justice has been turned into a process shrouding the truth under legal niceties”.

The order goes on to mention that “an unsatisfactory state of affairs, therefore, exists which, unless explained, casts an impression that the Court has adopted a different standard for one of its own. Judges occupy an exalted position in society as dispensers of justice... Therefore, neglecting their duty to search and confront the truth goes against the express command of Almighty Allah who has warned against providing preferential treatment to privileged persons”.

Justice Munib Akhtar, in his separate note, has raised serious and apparently valid objections to Justice (r) Manzoor Ahmad Malik affixing his signature to the ‘majority’ judgement as he had retired much before the conclusion of the case. He states that “in my view, the settled position is that once a judge of this Court has retired, he cannot thereafter give, make or sign any judgement, order or decree, and certainly not in such manner as has, or can have, operative effect. Upon retirement, he has left office and, thereafter, cannot, as it were, return to service, whether of his own volition, or at the request of any judge(s) on the Court, unless the Constitution itself so allows”. It, therefore, flows from there that, as a matter of law, “Justice (r) Manzoor Ahmad Malik could not have signed the ‘majority’ judgement”.

On its face value, this brings into question the judgment itself as not carrying the support of a majority of judges of the 10-member bench. In a case which is heard by a bench comprising more than one judge, the “operative decision (whether judgement, decree or order) must have the support of a majority. Even fifty percent is not enough: that is only a plurality. The majority threshold must be crossed”. It follows from there that “if there is no majority, there is no operative order, or decree, or, in the case of a judgement, no ratio decidendi of the Court”.

So, therefore, all judgments which do not have the support of a majority of judges of the bench will not be operative in nature. In other words, they cannot be implemented per se. Consequently, the judgments will be rendered as being of no meaning or relevance in the annals of law.

There are two other points which are relevant here. One pertains to the judges being public servants and the other about Mrs Sarina Isa herself having demanded that she be questioned by the Federal Board of Revenue (FBR) about the source/s of funds used for purchasing the three properties in London.

In the former case, five main ingredients should be present for someone to be classified as a public servant including the office being a trust conferred for public service; the functions of the office being determined by law; the office involving the exercise of a portion of the sovereign functions of the government whether that be executive, legislative of judicial; the term and the tenure of the office being fixed by law, and remuneration paid from public funds.

When the office of a judge of the Supreme Court is scrutinised against these requirements, it becomes obvious that “judges of this court are, indeed, public servants. Their office is created by the constitution and so are the jurisdiction and powers they possess. They perform an essential governmental function: the administration of justice for the benefit of public at large. They have a fixed tenure prescribed by Article 179 of the constitution and their emoluments are paid from the Federal Consolidated Fund under Article 81 of the constitution. As a result, there is no doubt that a judge of the Supreme Court is a public servant for purposes of Section 216(3)(p) of the Income Tax Ordinance”.

Having determined that, the judgment goes on to address another fundamental point in the review petition which pertains to objections raised by the petitioner regarding involvement of the FBR to enquire about the source/s of the funds used to purchase the London properties. In her oral submission before the court, Mrs Isa herself had solicited the involvement of the FBR: “Why has no one asked me this from the beginning? Why has the FBR not contacted me: I have waited and waited: 13 months of hell they have put us through ... I have requested, as my husband has, please ask us from the beginning”.

The bench, therefore, had no hesitation in conceding to the petitioner’s own wish: “Rather than allowing the disturbing allegations against the petitioner and his family to circulate and attract innuendos, thereby injuring the reputation and integrity of the petitioner and this Court, we adopted the fair, impartial and transparent route of allowing Mrs Isa and her children to disclose the source/s of their funds to the relevant authorities, the FBR”.

There is more, much more in the judgment that speaks of the duplicitous approach that the petitioners had adopted in their bid to stave off the investigation and the dreaded conviction. In the process, they resorted to using all means and methods they could get their hands on, irrespective of whether it would preserve their own dignity as also the stature of the bench. This included the threat hurled by the petitioner before the bench that if it allowed one judge to be questioned regarding the sources of his assets, others’ turn would also come in due course.

This is as crude as it could get. Is it that the judges gave in to the blatant threat and decided that a fellow-judge should not be held accountable so that they could also escape the dragnet? Or was it a combination of factors which prompted the decision? Whatever may have been the cause, this judgment is like the proverbial albatross that is not likely to go away.

The writer is the special assistant to the PM on information, a political and security strategist, and the founder of the Regional Peace Institute. He tweets @RaoofHasan